eLex January 2021

Table of Contents

NewsSubstantive LawLegislation
In the NewsCivil LitigationFederal
Court Notices &
Practice Directions
Constitutional LawProvincial
Discipline DigestsCorporate & Commercial
New Library ResourcesCriminal Law 
Family Law 
 Labour & Employment 

News


In the News

2020 SCC Year in Review as published by Supreme Advocacy.

CanLII Connects’ Year in Review

The Great Library is closed while Winnipeg is under Code Red restrictions. Please email us at library@lawsociety.mb.ca for all your legal research needs.


Court Notices & Practice Directions

All COVID-19 Notices and Practice Directions are available here.

Court of Queen’s Bench

Notice – Adjustments to Current Scheduling Protocols – January 12 – 29, 2021 (Family Division) (December 21, 2020)
Practice Direction – Adjustments to Current Scheduling Protocols – January 11 to 29, 2021, Video Conference Civil Trials and the Continuation of other Remote Services (December 18, 2020)

Provincial Court

Notice – Rescheduling of Adult and Youth out of Custody Matters Due to COVID-19 (January 6, 2020)
Notice – Further Suspension and Restriction of Hearings Return to Sitting for Some Trials and Special Sittings in Certain Circuits (December 30,2020)
Notice – Suspension of Court Sittings due to COVID-19 (December 30, 2020)
Notice – Rescheduling of Winnipeg Adult and Youth Out of Custody Matters due to COVID-19 (Winnipeg Centre) (December 30,2020)
Notice – Suspension of Court Sittings due to COVID-19 (December 17, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-19 (December 11, 2020) 
Notice – Rescheduling of Adult and Youth Out of Custody Matters due to COVID-19 (Regional Centres) (December 11, 2020) 
Notice – Rescheduling of Adult and Youth Out of Custody Matters due to COVID-19 (Winnipeg Centre) (December 11, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-19 (December 11, 2020)
Notice – Rescheduling of Circuit Court Sittings due to COVID-10 (December 4, 2020)
Notice – Rescheduling of Adult and Youth out of Custody Matters due to COVID-19 (Regional Centres) (December 4, 2020)
Notice – Rescheduling of Adult and Youth out of Custody Matters due to COVID-19 (Winnipeg Centre)  (December 2, 2020)


Discipline Digests

Discipline decision – Wang, Junling


New Library Resources

New Online Titles

From Deslibris

National Security Law – 2nd ed. by Craig Forcese and Leah Westis

This text is about the law governing the Canadian state’s response to serious crises, that is, events that jeopardize its national security. The book approaches national security law as a system, organizing its discussion of law around five themes: structure, threats, information, response, and accountability –Publisher’s description.

Substantive Law


Civil Litigation

C.M. Callow Inc. v. Zollinger, 2020 SCC 45: Issue of whether exercise of termination clause constituted a breach of duty of honest performance. Group of condominium corporations (Baycrest) entered into a two year winter maintenance contract and a separate summer maintenance contract with the appellant, C.M. Callow. Baycrest did not renew winter contract when it was up for renewal, misleading Callow during the period of the summer contract. Appeal allowed and decision of trial judge reinstated.

The duty of honest performance in contract, formulated in Bhasin v. Hrynew2014 SCC 71, [2014] 3 S.C.R. 494, applies to all contracts and requires that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. In determining whether dishonesty is connected to a given contract, the relevant question is whether a right under that contract was exercised, or an obligation under that contract was performed, dishonestly. While the duty of honest performance is not to be equated with a positive obligation of disclosure, in circumstances where a contracting party lies to or knowingly misleads another, a lack of a positive obligation of disclosure does not preclude an obligation to correct a false impression created through that party’s own actions. (from the headnotes)

Interlake Reserves Tribal Council Inc, et al v. The Government of Manitoba, 2020 MBCA 126: Appeal by defendant of an order granting interlocutory injunctive relief from carrying out further work on an all-season road. Manitoba Metis Federation (MMF) and the Assembly of First Nations (AFN) move to intervene. Project is the construction of two permanent outlet channels to direct flood waters in the Interlake region. Leave to intervene is governed by Rule 46.1. AFN argument includes reference to UNDRIP. Motion by both parties to intervene in the appeal are dismissed.

The Workers Compensation Board v. Ali, 2020 MBCA 122: Appeal of decision denying motion by the defendant to dismiss the claim for delay. Statement of claim for negligence on the part of the defendant was filed in April 2007. Statement of defence was filed in March 2009. Analysis of the interpretation of former Rule 24.01. Appeal allowed.

Bayview Construction Ltd. v. 6681485 Manitoba Ltd., 2020 MBQB 173: Expedited action under Rule 20(A). Parties are involved in construction of a 55 unit condominium project. Plaintiff commenced action to collect remaining balance on contract; defendant counterclaims alleging breach of contract. Abra, J. notes this is “the antithesis of an expedited action” (para. 8). Judgment granted to plaintiff Bayview with interest.

Martens v. The Manitoba Public Insurance Corporation, 2020 MBQB 158: Motor vehicle accident from 1998. Liability was resolved in 2012. Current issue is whether MPI acted in bad faith. Analysis of bad faith as a stand alone claim and whether it rises to an actionable wrong. Court agrees with plaintiff that claims process rises to level of egregiousness and punitive damages are warranted.


Constitutional Law

Springs of Living Water Centre Inc. v. The Government of Manitoba, 2020 MBQB 185: Emergency Charter challenge to authority of order under the Public Health Act to restrict attendance at religious ceremonies. Onus that applicant must meet to obtain a stay of legislation is extremely high. Analysis of statutory interpretation of a Public Health Order. Application denied.


Corporate & Commercial Law

Resolute FP Canada Inc. v. Hydro-Québec, 2020 SCC 43: Issue of assignment of contracts. Original contract entered into in 1926 between previous entities. Over time, the contract was assigned to Hydro-Québec through the nationalization of electricity in Québec. Respondent relied on a clause from the original 1926 contract to increase the price of electricity purchased from it by the appellant. SCC is asked to reconsider the conditions for and effects of assignment of contract. From the headnotes:

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Martin and Kasirer JJ.: The 1965 contract effected an assignment of the 1926 contract. As a result, Hydro‑Québec is a party to the 1926 contract and can therefore invoke art. 20 of that contract with respect to Resolute. Because the two levies at issue are a “tax or charge” on electricity generated from water power within the meaning of that same art. 20, the 1926 contract applies to them and they are therefore payable by Resolute to Hydro‑Québec under that agreement.

Per Côté and Rowe JJ. (dissenting): The appeal should be allowed and the Superior Court’s decision restored. The trial judge did not make a reviewable error in finding that Gatineau Power had not assigned the 1926 contract to Hydro‑Québec and that the 1965 contract had instead made Hydro‑Québec a mandatary of Gatineau Power. 

Canada v. BCS Group Business Services Inc., 2020 FCA 205: Appeal from decision of Tax Court granting respondent corporation leave to be represented by its sole shareholder and director, and not a lawyer. Analysis of TCC General Procedure Rule 17.1 (right to appear). Standard of review of a question of law is correctness. Discussion of corporation as a legal person and whether it can appear “in person”. Appeal allowed.

Dennis v. The Attorney General of Canada et al, 2020 MBCA 118: Potential class action by a proposed class of farmers who sold grain to the Canadian Wheat Board. Appeal of a judgment of a motion judge striking out its claim without leave to amend, on the basis that it doesn’t disclose a reasonable cause of action. Appeal allowed.

Ackron Egg Farms Ltd. v. Manitoba Egg Farmers et al., 2020 MBQB 187: Dispute over regulatory decisions in a supply management system. Explanation of the key concepts underlying supply management and the ownership of quotas. Crisis developed during the pandemic, when there was a surge of demand for eggs in their shell versus eggs for processing. Application for judicial review of decisions of Manitoba Egg Farmers (MEF). Application dismissed.


Criminal Law

R. v. Cortes Rivera, 2020 SCC 44: Appeal from 2020 ABCA 76, conviction for sexual assault. Issues included whether the trial erred in declining to hold a s.276.1 hearing, and admitting certain evidence.

The Court — We would dismiss the appeal. The parties did not dispute that the trial judge erred in dismissing the accused’s application under s. 276.1 of the Criminal Code, R.S.C. 1985, c. C-46, to cross‑examine the complainant. In our view, this error did not lead to a miscarriage of justice and falls within the curative proviso under s. 686(1)(b) because the evidence was otherwise overwhelming and a conviction was inevitable.

R. v. W.M., 2020 SCC 42: Appeal from 2020 ONCA 236, conviction for sexual interference and sexual assault of accused’s daughter over materiality of the trial judge’s misapprehension of the evidence. CA ordered a new trial; B.W. Miller, J.A. in dissent would dismiss the appeal.

The Chief Justice — We are all of the view that the appeal must be allowed for the reasons of Justice Miller.

R. v. Mehari, 2020 SCC 40: Appeal from 2020 SKCA 37, conviction of sexual assault related to admissibility and assessment of the evidence. CA overturned trial decision and ordered a new trial. Appeal allowed.

The Court — This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law. In any event, we see no error in respect of this argument that would have warranted intervention on appeal.

R. v. Delmas, 2020 SCC 39: Appeal from 2020 ABCA 152, that essentially the verdict was unreasonable in a sexual assault conviction. Appeal dismissed (oral decision).

Moldaver J. — A majority of the Court would dismiss the appeal. The trial judge did not engage in stereotypical reasoning in his assessment of the appellant’s evidence. (Justice Côté dissenting).

R. v. Roulette, 2020 MBCA 125: Appeal of conviction by a jury for three counts of aggravated assault. Basis of conviction was that accused was a party to the offence through a common intention to commit an assault. Review of jury instructions on a standard of adequacy not perfection. Appeal dismissed.

R. v. Buckels, 2020 MBCA 124: Appeal of both conviction and sentence for possession of cocaine and methamphetamine for the purposes of trafficking, as well as other offences. Conviction appeal dismissed. Sentence was not demonstrably unfit taking into account migitating factors, so leave to appeal denied.

R. v. VanEindhoven, 2020 MBCA 123: Leave to appeal sentence for assault on domestic partner, based on ineffective assistance from counsel and errors by the sentencing judge. Accused also asks to admit fresh evidence. Appeal dismissed.

R. v. Overby, 2020 MBCA 121: Accused appeals conviction by a jury for second degree murder. Appeal is based on very narrow grounds. Accused argued that the circumstances warranted a finding of manslaughter. Appeal dismissed.

R. v. Richards, 2020 MBCA 120: Sentence appeal. Accused is a permanent resident of Canada but not a citizen, and received a six month custodial sentence after pleading guilt to one count of break and enter. At sentencing hearing, judge was not made aware that this sentence would make him subject to a removal order, whereas a sentence of six months less a day would allow him to appeal the removal order. Appeal allowed.

R. v. Abbasi, 2020 MBCA 119: Appeal by accused for convictions of a number of sexual offences and seeks leave to appeal his sentence. Analysis of actual and innocent collusion in witness testimony and its admissibility. Appeal dismissed.

R. v. Simon, 2020 MBCA 117: Appeal of conviction for sexual assault and sentence (sentence appeal abandoned). Grounds for appeal: trial judge unevenly scrutinized the evidence; trial judge misapprehended the evidence; trial judge considered prohibited evidence when assessing credibility. Key issue at trial was consent and case turned on credibility. Appeal dismissed.

R. v. Ducharme, 2020 MBQB 177: Accused is charged with first degree murder in the killing of another inmate at Stony Mountain Institute. Crown’s position is that the accused aided in the planning and carrying out of the murder, and disposing of the murder weapon. Evidence is circumstantial. Crown’s evidence is a silent video of the activities of the accused and others on the range for eight hours leading up to and after the murder. Defence interprets evidence differently. McCarthy, J. does not find the Crown has proved its case beyond a reasonable doubt and the accused is acquitted.

R. v. Cure, 2020 MBQB 175: Appeal of summary conviction for driving while impaired. Appellant argues trial judge erred in finding that arresting officer had reasonable grounds to make a breath demand; in finding that officer did not breach appellant’s Charter right under s. 10(b) to speak to counsel of choice; and in finding he was in care or control of the vehicle. Significant analysis of s.10(b); appeal dismissed.

R. v. Airmaster Sales Ltd., 2020 MBQB 174: Appeal of convictions re two provincial offence notices for speeding (photoradar). Accused’s personal representative had been denied authorization to act on his behalf; accused then did not turn up for rescheduled hearing; JJP entered default convictions. Accused argues that JJP erred when she did not allow his representative to act; Crown argues that issue is accused was convicted because he did not appear. Analysis of interpretation of “representative” (s. 53 of the Provincial Offences Act). Appeal dismissed.

The Canadian Broadcasting Corporation v. Morrison, 2020 MBQB 169: Application for an order of certiorari to quash a publication ban issued by Provincial Court in 2019. Matter is a private prosecution re charges of defamatory libel. Applicant is acting as a third party news organization and not a party to the prosecution. Argument is over the open courts principle. Issues are whether the applicant has the status to bring the application and if so, is certiorari available in these particular circumstances. Analysis of applicant’s standing. Application denied.

R. v. Farley, 2020 MBQB 167: Appeal of conviction in Provincial Court for impaired driving. Accused claims a Charter breach of infringement of his right to counsel and that arresting officer should have inquired if he had drunk alcohol recently. Appeal dismissed.

R. v. F. (J.M.), 2020 MBQB 161: Application by Crown for an order that the accused be sentenced as an adult. He was convicted of first degree murder. At the time of the murder he was almost 17 years old. He is now 20. Principles to be applied are s. 72(1) of the YCJA and relevant case law (noted in para. 6). Onus rests with the Crown. Order granted.

Michelle Biddulph. “The Privacy Paradox: Marakah, Mills, and the Diminished Protections of Section 8.” (2020) 43:5 Man L J 161.

This article challenges the understanding of Marakah as a progressive decision, suggesting that Marakah has created a privacy paradox. By significantly expanding the scope of section 8 of the Charter, the Court in Marakah has created a right that is both extremely broad and practically illusory.

Sonia Lawrence, Debra Parkes. “R. v. Turtle: Substantive Equality Touches Down in Treaty 5 Territory”. (2020) 66 C.R. (7th) 430. (WLNC – request a copy).

…However, in R. v. Turtle, a provincial court sentencing proceeding for impaired driving that involved a constitutional challenge brought by six Indigenous women (Sherry Turtle, Audrey Turtle, Loretta Turtle, Cherilee Turtle, Rocelyn Moose and Tracey Strang), Canadian substantive equality touched down in Treaty 5 Territory. The women had all been convicted of a second impaired driving offence, and were facing mandatory minimum sentences of not more than 90 days. They were also eligible under the terms of s. 732 of the Criminal Code to serve these sentences intermittently.


Family Law

Hart v. Pownall, 2020 MBQB 168: Motion by respondent for suspension of final order, or variation of child and spousal support pending trial. Petitioner filed a motion in opposition. Parties had signed a final order in 2016 dealing with all property and support obligations. As a result of the complexity of the issues, trial is set for May 2021. Respondent’s motion is dismissed.

M.K. v. Child and Family All Nations Coordinated Response Network, 2020 MBQB 156: Application in opposition to Notice of Intended Entry on the Child Abuse Registry. Applicant was found by WPS in vehicle with a 14 year old girl who acknowledged she was a sex trade worker. Discussion of hearsay rule as outlined in D.L. v. Child and Family All Nations Coordinated Response Network, 2014 MBCA 86. Significant analysis of credibility of testimony of applicant and its inconsistency in his statements to various investigators as well as at trial. Application dismissed.

Claire Houston. “Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts”. (2020) 33:1 Can J Fam L 103.

Family court judges are increasingly being asked to resolve parenting disputes involving conflict over a child’s gender expression or identity. These disputes ask whether it is in the best interests of children to support their gender nonconformity, including any decision to transition to a gender different from the one they were assigned at birth. Despite more of these cases coming before family courts, judges have little guidance on how to resolve these cases in the best interests of children.


Labour & Employment

Pokornik v. SkipTheDishes Restaurant Services Inc., 2020 MBQB 181: Class action over whether the plaintiff’s relationship with the defendant is one of employment or independent contractor. Defendant states that arbitration clause in the plaintiff’s contract mandates that disputes be resolved by arbitration. Chartier, J. agrees that defendant may bring its application to stay the claim under The Arbitration Act before any further steps are taken.


Legislation


Federal

43rd Parliament, 2nd Session
C-7 An Act to amend the Criminal Code (medical assistance in dying)
Progress: Second Reading in the Senate Show Details

S-2 An Act to amend the Chemical Weapons Convention Implementation Act
Progress: Third Reading in the Senate Show Details

C-6 An Act to amend the Criminal Code (conversion therapy)
Progress: Committee Reporting the Bill with Amendments in the House of Commons Show Details

C-262 An Act to amend the Income Tax Act (capture and utilization or storage of greenhouse gases)
Progress: Introduction and First Reading in the House of Commons Show Details

C-10 An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
Progress: Introduction and First Reading in the House of Commons Show Details

C-17 An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2021
Short Title: Appropriation Act No. 5, 2020-21 Statute of Canada: 2020, c. 14
Progress: Royal AssentShow Details


Provincial

42nd Legislature, 3rd Session

House adjourned December 3, 2020 until the call of the Speaker. No new activity.

Winner Winner!

2020 may have been an annus horribilis, to quote the Queen and many others, but for this blog, it was award worthy. We won a #Clawbie for Best Law Library resources! (It was really just an honour to be nominated …)

Check out all the other award winners – there are many new resources just waiting to be discovered!

2020 Canadian Law Blog Awards Winner

The Frailties of Online Legal Research

The words “and” and “or”

Stephen Thiele, a research partner at Gardiner Roberts, recently published the following on the difficulties of searching online when you are looking for judicial consideration of “and” and “or”. As these are also boolean operators, it can be difficult for platforms to distinguish between the two. Here is Stephen’s advice.

I have been a legal research lawyer for almost 30 years.

When I started law school in 1987 the use of laptops to take notes in lectures was completely unknown. Our first year legal research and writing class was based on how to conduct research using books like case reports, The Canadian Abridgment Digests, and the Canadian Encyclopedic Digests (Ontario) and other paper sources. Online research was limited to “Quicklaw”, which was a database of cases that could be searched using Boolean search parameters. These cases were generally considered to be unreported decisions because they had not been published in case reports, such as the Dominion Law Reports or the Ontario Reports.

When I articled, we did not have a desk top computer and all legal research was done using the physical books that were either in the firm’s small library or at the nearby law school law library.

When I was called to the Ontario Bar in 1992, lawyers were only beginning to get desktop computers installed in their offices. Thus, online commercial legal research sources were still in their infancy as the legal publishers were still developing platforms that could be utilized over the internet and easily accessed from a law office computer.

At the time, the Canadian Abridgment Digests became one of the first product that was made available on a CD-Rom and eventually Carswell was able to develop an online research tool to rival Quicklaw.

The race toward the virtual library had begun.

Today, law students and the legal profession have become dependent on using online tools to conduct legal research. Paper products have disappeared from library bookshelves as lawyers and students access virtual law libraries. However, as I recently discovered, conducting online legal research is not necessarily easy if the point of law being searched is a common word.

The words “and” and “or” are words that have received a lot of judicial consideration. But they are so common that trying to find jurisprudence in which they have been judicially interpreted using online search tools can prove difficult.

For example, there are some tools available online that are specifically created to assist the researcher in understanding how certain words have been judicially considered. For example, the product “Words & Phrases” might be a good place to discover how the words “and” and “or” have been interpreted. However since both “and” and “or” are Boolean search connectors, they are “stop words” when entered electronically in the relevant search fields of this tool. Accordingly, no results can be obtained.

Meanwhile online dictionaries are not necessarily adequate either, as I discovered when searching a dictionary on another online private commercial source even though these two very common words have received much attention.

So in order to track down the relevant law in which the meaning of common words is sought using virtual research tools, a legal researcher must think of other words and search strategies to produce the desired results.

But finding an alternative might still prove to be elusive. For example, a researcher might try to use different natural language searches or different Boolean search strings such as: “contractual /s interpretation /s “and”” or “meaning /s “and” /s “or””. However, these search strings produce unsatisfactory results.

Thus, a legal researcher might currently still be tempted to hop in a car, while we work from home during the COVID pandemic and potentially in the future, and drive to the office to access a hard copy of a law dictionary to discover the legal meaning of the word “and” and “or”, especially where there is time pressure to find an answer.

But this is an easy way out and is likely to be unavailable in the future as law firms feel the pressure to convert their physical law libraries to virtual law libraries that are accessible to all lawyers and law students from their computers at all times of the day.

Accordingly, in an evolving world where technology is replacing paper, it is incumbent for legal researchers to evolve their methodologies to match the evolution that is taking place in the legal publishing world.

For online research where the only source available might be a case law database because helpful textbooks have not yet been converted to an electronic format or might not be included in a firm’s subscription, the meaning of common words like “and” and “or” requires the researcher to utilize uncommon words. For the words “and” and “or” those uncommon words are “conjunction”, “conjunctive” and “disjunctive”.

As a matter of contractual or statutory interpretation the words “and” and “or” are sometimes interpreted “conjunctively” or “disjunctively” depending on context. Using these uncommon words in a search string will open the door to retrieving the relevant case law to help answer legal questions involving how a court might interpret these common words in a contract or a statute.

Although it cannot be doubted that more and more legal research will be dependent on the use of online tools, whether through publicly accessible sites like CanLII.org or privately purchased commercial tools like WestlawNextCanada or Lexis Advance, hard copy books should not be discounted until such time as these books are converted to an electronic format and made widely available to the legal community in such format. While I am a veteran research lawyer who can easily shift to an online legal research world and discover the keywords necessary to retrieve relevant case law where the interpretation of a common word is at stake, the less experienced legal researcher might struggle.

The take away is that while legal publishers need to rapidly convert paper titles into electronic format, legal researchers must appreciate that there will always remain potential frailties in online legal research and that great care and thought sometimes is required to locate and retrieve the necessary cases on point.

Thank you to Stephen for allowing us to reprint his post here.

eLex December 2020

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
New Library ResourcesConstitutional Law 
Corporate & Commercial 
 Criminal Law 
 Family Law 
 Labour & Employment 

News


In the News

In a rare Saturday sitting, Chief Justice Glenn Joyal dismissed an application for a temporary stay of enforcement of the public health order regarding drive-in church services.

CanLII has published The CanLII Manual to British Columbia Civil Litigation.


Court Notices & Practice Directions

All COVID-19 Notices and Practice Directions are available here.

Court of Queen’s Bench

Practice Direction – Family and Child Protection Video Conference Trials and the Continuation and Commencement of Other Remote Services (December 3, 2020)
Notice – Adjustments to Current Scheduling Protocols – December 14, 2020 to January 8, 2021 (December 3, 2020)
November 26, 2020 – Court Attire
Practice Direction – Remote and Off Site Civil Trials (November 20, 2020)
Practice Direction – Criminal Trials Accused’s Remote Appearance by Video Conference (November 17, 2020)
Masters’ Court – COVID-19 Update (November 12, 2020)
Notice – Adjustments to Current Scheduling Protocols – November 16 to December 11, 2020 (November 10, 2020)

Provincial Court

December 1, 2020 – Counter Court (Winnipeg)
Notice – COVID-19 – Suspension and Restriction of Hearings (November 30, 2020)
Notice – COVID -19 – Suspension and Restriction of Hearings – Legal Aid Administrative Court (November 24, 2020)
Notice – Service of Child Protection Proceedings on Persons in Custody during Pandemic Restrictions (November 18, 2020)
Notice – Circuit Court Sitting Replacement Dates Due to COVID-19 (November 18, 2020)
Practice Directive – Video Appearances for Trials and Preliminary Hearings in the Provincial Court of Manitoba (November 17, 2020)
Notice – COVID -19 – Rescheduling Adult and Youth Out of Custody Matters -Regional Centres  (November 16, 2020)
Notice – COVID – 19 – Reschedulding Adult and Youth Out of Custody Matters (November 13, 2020)
Notice – COVID -19 – Suspension and Restriction of Hearings (November 10, 2020)


New Library Resources

Introducing New Practice Resources – Have you seen The Law Society’s newly relaunched Practice Resource Library? This comprehensive collection of resources is now conveniently available at the click of your mouse, free of charge. While designed to support all Manitoba lawyers in their practice, these resources have been developed with solo and small firm practitioners particularly in mind.

Substantive Law


Administrative Law

Court v. Canada (Attorney General), 2020 FCA 199: Request for judicial review of a decision of the Appeal Division of the Social Security Tribunal. Applicant was terminated from employment during her pregnancy and received maternity and parental leave benefits. She also sued her employer for wrongful dismissal and breach of contract, reaching a settlement of $50,000. Employment Insurance Commission notified the applicant that the settlement represented earnings and meant she received an overpayment of benefits and had to pay them back. Analysis of the legislative meaning of s.45 of the Employment Insurance Act and s.35 of the Regulations. Application dismissed, no awarding of costs.

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196: Appeal and cross-appeal re two applications for judicial review challenging the designation of four Jurisprudential Guides (JG) by the Chairperson of the IRB. Appeal dismissed and cross-appeal granted.

[4]  The Federal Court certified the two following serious questions of general importance, as contemplated by paragraph 74(d) of the IRPA:
1. Does the Chairperson of the Immigration and Refugee Board have the authority pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act to issue jurisprudential guidelines that include factual determinations?
2. Do the Jurisprudential Guides that the Chairperson issued with respect to Nigeria, Pakistan, India and China unlawfully fetter the discretion of members of the Refugee Protection Division and the Refugee Appeal Division to make their own factual findings, or improperly encroach upon their adjudicative independence?

Kevin W. Gray. “A Separate Head of Judicial Review: Divergent Paths in Common Law Rights Review”, 33 Can. J. Admin. L. & Prac. 305 (Sept. 2020). (WLNC – request a copy.)  “This paper argues that proportionality review, if adopted in Canada as a separate head of review, would provide a more robust form of rights protection.”


Civil Litigation

Hydro-Québec v. Matta, 2020 SCC 37: Property rights – Servitudes; whether original acquisition of servitude allowing Hydro-Québec to set up a transmission line between two substations in the 1970s allowed for additional work to be carried out on the servient land. Trial judge ruled for Hydro-Québec; appeal overturned. SCC allowed appeal.

Kuny v. Pullan Kammerloch Frohlinger et al, 2020 MBCA 114: Request for extension of time to file an appeal re summary judgment decision granted to defendants re claims by plaintiff alleging negligence and professional misconduct by two law firms. Leave granted.

Ian Dmytriw et al v, Jonah N.K. Odim et al, 2020 MBCA 112: Appeal by defendants of motion judge’s refusal to dismiss action for delay. Motion was previously dismissed by a Master then overturned by a judge. Simonsen, J. concludes that motion judge erred in law by applying the former rule rather than the current one, made a palpable and overriding error in determining the period of unexplained delay and did not properly deal with inherent prejudice. Appeal allowed. Chronology of events included, as well as discussion of differences to Rule 24.01.

Wesco Distribution Canada GP Inc. v. Fenchurch General Insurance Company, 2020 MBQB 166: Motion for preliminary determination of whether the limitation period in The Insurance Act applies to a labour and payment bond. Question depends on whether the bond is a contract of insurance under the Act. Defendant claims the limitation period was one year while the plaintiff states it is two years. Analysis of the definition of a “contract of insurance”. Greenberg, J. agrees with plaintiffs.

Grumm v. Warkentin, 2020 MBQB 164: Defendant’s motion to dismiss plaintiff’s action due to delay. Plaintiff issued a statement of claim for personal injuries sustained in an assault, in October 2006. Defendant responded in October 2007. Replay and counterclaim by the plaintiff in October 2010. Two issues: Should motion precede under current rules for delay amended on January 1, 2018 or under the old rules; should action be dismissed. Matter was not unduly complex; Chartier, J. found that plaintiff did not provide any reasonable explanation for the delay. Motion granted.

Gomes v. Laporte, 2020 MBQB 152: Two actions combined: civil action concerning an unprovoked assault, and an allegation of malicious prosecution and civil conspiracy. Plaintiff in assault pursued criminal charges which were dropped. Civil action on assault dismissed; damages awarded for the other action.

Kennedy et al. v. McKenzie, 2020 MBQB 139: Contested applications over the appointment of a committee responsible for making decisions about property and personal care. Applications are between the respondent’s common-law husband and his mother, and her own mother. Respondent suffered a traumatic brain injury after being hit by a vehicle. Analysis of legal test as set out in Yaremko v. Manitoba (Director of Psychiatric Services (2001 MBQB 85). Turner, J. concludes that respondent’s mother is the best choice.

Jerred Kiss. “The Newest Member of the Family: A Comment on Leitch v. Novac”. 64 C.C.L.T. (4th) 279.  2020 ONCA 257. (WLNC – request a copy.) 

… Of these remaining economic torts, unlawful means conspiracy is perhaps the one characterized by the most uncertainty. While it is now clear that the tort’s “unlawful means” element is not restricted to civilly actionable wrongs both its general scope and elements of liability remain unclear. Thankfully, in Leitch v. Novac the Ontario Court of Appeal has now addressed the former issue, holding that while unlawful means conspiracy may be considered an “economic tort,” plaintiffs are not necessarily barred from pleading it in the family law context. …

Michael McGowan. “Annotation to OZ Merchandizing Inc. v. Canadian Professional Soccer Association”. 35 C.P.C. (8th) 396. (WLNC – request a copy.) 2019 ONSC 3882

OZ Merchandizing is an uncommon example of a closing address to a jury containing such numerous, serious, and varied flaws that the trial judge was unable to remedy the situation by correcting instructions to the jury. Although trial counsel should represent his/her client fearlessly and with vigor, the line was clearly crossed in this case.


Constitutional Law

Ontario (Attorney General) v. G, 2020 SCC 38: Right to equality re Ontario’s sex offender registry. Accused found not criminally responsible on account of mental disorder for sexual offences can never be removed from the sex offender registry even after receiving an absolute discharge from a review board. Review of ss. 7 and 15(1) of the Charter. Appeal dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Christopher’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter. These discriminatory distinctions cannot be justified in a free and democratic society. The remedy granted by the Court of Appeal was appropriate, and its orders should be upheld.

Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32: Does fining a corporation constitute cruel and unusual punishment? Corporation was fined the mandatory minimum fine for an offence under s.46 of Quebec’s Building Act. The corporation challenged the fine under s. 12 of the Charter.  Analysis of the meaning of “cruel and unusual” and whether it applies to corporations as well as human beings.

Per Abella, Karakatsanis and Martin JJ.: The purpose of s. 12 of the Charter is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.

Stephanie Williams. “The Powers of the CSE after C-59: Are Privacy Rights at Risk?” 40 Nat’l J. Const. L. 131. (WLNC – request a copy.)

In 2019, Canada’s national security legislation was overhauled. A significant part of this overhaul was the creation of the Communications Security Establishment Act, providing a complete legislative framework for Canada’s nearly 80-year-old signals intelligence agency, the Communications Security Establishment (the CSE). This new legislation also brings many concerns for Canadians’ privacy. 


Corporate & Commercial Law

1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35: Issue of the tort of pure economic loss. In 2008 Maple Leaf was forced to recall meat products processed at one of its factories due to a listeria outbreak. Following the outbreak, franchisees of Mr. Sub experienced a shortage of product for six to eight weeks. A class action on behalf of the franchisees against Maple Leaf was certified, but overturned on appeal. From the headnote:

Per Moldaver, Côté, Brown, Rowe and Martin JJ.: Maple Leaf does not owe a duty of care to the franchisees in respect of these matters. … Pure economic loss is economic loss that is unconnected to a physical or mental injury to the plaintiff’s person, or physical damage to property.
Per Wagner C.J. and Abella, Karakatsanis and Kasirer JJ. (dissenting): … it is just and fair to impose a novel duty of care on Maple Leaf in the circumstances, and the appeal should therefore be allowed.

Sensible Capital Corp. v. Galton Corporation, 2020 MBQB 159: Motion for summary judgment by the plaintiff re various alleged breaches of a debenture agreement. Defence argues this is not an appropriate case for summary judgment and raises defence of estoppel. Extensive analysis of the test for summary judgment and whether additional oral evidence should be entered. Discussion of the parol evidence rule. Summary judgment granted.

Dowd et al. v. Skip the Dishes Restaurant Services Inc., 2020 MBQB 155: Appeal of Master’s decision dismissing plaintiffs’ motion for an interim order for preservation of property. Plaintiffs claim co-creation of the online ordering system of the defendant. Master dismissed motion because plaintiffs had not demonstrated the property, as they defined it, could be the subject of an order for preservation. Analysis of Queen’s Bench Rule 45.01. Also consideration of whether the Master’s decision would impact discovery. Appeal dismissed.

Bill C-12 can demonstrate environmental leadership to Canadian business”. Janis Sarra, The Lawyers Daily, November 25, 2020.


Criminal Law

R. v. Slatter, 2020 SCC 36: Appeal of 2019 ONCA 807 based on sufficiency of reasons by trial judge in a sexual assault trial. Complainant has an intellectual and developmental disability. Appeal allowed; conviction restored.

Moldaver J. — We are all of the view that the appeal must be allowed, for the reasons of Justice Pepall, with which we agree.

R. v. Kishayinew, 2020 SCC 34: Appeal from 2019 SKCA 127 on issue of subjective consent via circumstantial evidence. Delivered orally by Moldaver, J.:

“A majority of the Court is of the view that, when read in context, the trial judge’s reasons make it clear that he was satisfied, beyond a reasonable doubt, that the complainant did not subjectively consent to any sexual activity with Mr. Kishayinew.”

R. v. Langan, 2020 SCC 33: Appeal from 2019 BCCA 467 over the admission of text messages into evidence. Oral decision delivered by Abella, J.:

“A majority is of the view to allow the appeal for the reasons of Chief Justice Bauman. Justices Côté and Brown would dismiss substantially for the reasons of Justice Stromberg-Stein. “

R. v. Riley, 2020 SCC 31: Oral decision delivered by Karakatsanis, J. allowing the appeal for the reasons of Scanlan, J.A. in dissent, 2019 NSCA 94. Issue of whether giving a Vetrovec caution was an error and if so, could the appeal be dismissed by the curative proviso?

R v. Amyotte, 2020 MBCA 116: Appeal of sentence. Accused submits sentencing judge misunderstood the terms of a joint recommendation; that he failed to apply the totality principle; and that he failed to give sufficient weight to Gladue factors. Crown agreed that it is apparent from the sentencing judge’s reasons that he erred. Issue reviewed at appeal court is whether this had a material difference on the sentence imposed. Sentence appeal is dismissed.

R v. Kirton, 2020 MBCA 113: Accused seeks leave to appeal, and appeal, his sentence for six offences. He was designated a dangerous offender and sentenced to an indeterminate sentence. Standard of review is that set out in R. v. Sanderson, 2018 MBCA 63, para. 8. Appeal of dangerous offender designation and indeterminate sentence dismissed.

R v. Coutu, 2020 MBCA 106: Leave to appeal by the Crown of a sentence for a warrantless search of a backpack. Accused was discovered with a backpack of firearms when police were in pursuit of another suspect similarly dressed. Trial judge declared arrest and search illegal but did not exclude the weapons evidence. Instead, he reduced the sentence from five and a half years in prison to five years, to send a “message” to the police. Standard of review allows appeal court to sentence afresh based on its own analysis, giving deference to the sentencing judge’s finding of fact to the extent that they are not affected by an error in principle (para 8). Crown’s appeal allowed and sentence is increased.

R. v. S. (D.), 2020 MBQB 163: Sentence for charge of sexual interference under s. 151 of the Criminal Code. Accused is stepfather of 14 year old complainant. References R. v. Friesen as setting out applicable principles of proportionality. Rempel, J. determines denunciation and deterrence are the primary considerations, in imposing a sentence of nine years of incarceration.

An Application for a General Warrant, s. 487.01 and a Sealing Order, s. 487.3, 2020 MBPC 62: Request to use an automated licence plate reader (ALPR) to identify and track a suspected drug trafficker. Discussion of the reasonable expectation of privacy when police are gathering information. Application denied.

R. v. T.A., 2020 MBPC 59: Opposition by defence counsel to Crown’s application to file a videotaped statement of a 10 year old child involving sexual offences allegedly committed by her stepfather. Crown relies on s.715.1 of the Criminal Code; issue is whether the recording was made “within a reasonable time after the alleged offence”. Devine, P.J. sets out the four-part test to determine admissibility and finds the statement admissible.

R. v. Berent, 2020 MBPC 53: Motion for an order allowing the accuseds to attend their trial remotely by video link from California. Accuseds would have to quarantine for two weeks upon return to Manitoba and assert staying in Manitoba for a lengthy period of time would impose a hardship on them. Analysis of s.650 of the Criminal Code re the requirement for the accused to appear in court in person. Krahn, A.C.J. concluded that it would not be fair for a trial this complex to go ahead with the accused only appearing by video. 

Lauren Sapic. “The Criminalization of Non-Assimilation and Property Rights in the Canadian Prairies”. (2020) 43-5 M.L.J. 95.
The tragic case of Colten Boushie, a young Indigenous man from Saskatchewan, has become an inflection point in Canadian law due to the intersection of Indigenous rights and property law.


Family Law

Fijala v. Fijala, 2020 MBQB 162: Petitioner applies for an order deleting any and all arrears for child support, as well as late penalties and/or cost recovery fees and an order that the respondent pay her any overpayments. Petitioner had been ordered to pay child support to respondent for arrears, and then payments were to go to child. Confusion over who received what money. Application dismissed.

Ducharme v. Burym, 2020 MBQB 160: Divorce proceedings contesting custody arrangements for the parties’ four children and child support. Income imputed to father. Detailed consent order by MacPhail, J. at para. 66. Divorce granted.

“No legislative gap in assisted human reproduction legislation, B.C. Court of Appeal says.” Ian Burns, The Lawyers Daily, December 2, 2020. Case commentary on L.T. v. D.T. Estate, 2020 BCCA 328.

“Indigenous children and the child welfare system in Canada”. Darlene Rites. The Lawyers Daily, December 2, 2020. Case commentary on A.M. v. Ministry of Social Services, 2020 SKCA 114.


Labour & Employment

Engel v. Southern – Santé Sud Regional Health Authority,2020 MBQB 157: Applicant claims his right to perform surgery in the respondent’s hospitals was terminated without due process. Respondent says the process set out in the By-law doesn’t apply. Question of if the issue relates to the decision to terminate operating time or the process followed, and standard of review. Analysis of definition of “complaint” and “privileges”, and whether the By-law is delegated legislation. Decision terminating applicant’s right to be on the surgical rota is quashed; Greenberg, J. suggests parties proceed to arbitration which is the next step in the process.


Legislation


Federal

43rd Parliament, 2nd Session

C-232 An Act respecting a Climate Emergency Action Framework Short Title: Climate Emergency Action Act
Progress: Introduction and First Reading in the House of Commons Show Details

C-7 An Act to amend the Criminal Code (medical assistance in dying)
Progress: Concurrence at Report Stage in the House of Commons Show Details

C-259 An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985 (pension plans and group insurance programs)
Progress: Introduction and First Reading in the House of Commons Show Details

C-258 An Act to amend the Canada Labour Code (replacement workers)
Progress: Introduction and First Reading in the House of Commons Show Details

C-15 An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples Short Title: United Nations Declaration on the Rights of Indigenous Peoples Act
Progress: Introduction and First Reading in the House of Commons Show Details

S-212 An Act to amend the Criminal Code (disclosure of information by jurors)
Progress: Introduction and First Reading in the Senate Show Details

S-213 An Act to amend the Department for Women and Gender Equality Act
Progress: Introduction and First Reading in the Senate Show Details

C-3An Act to amend the Judges Act and the Criminal Code
Progress: First Reading in the Senate Show Details


Provincial

Third Session, Forty-Second Legislature

Government Bills

No.Sponsored byAs proposed(Click PDF for the bilingual version)
As enacted
37Hon. Ms. Squires
Minister of Municipal Relations
The Planning Amendment and City of Winnipeg Charter Amendment ActPDF 
38Hon. Ms. Squires
Minister of Municipal Relations
The Building and Electrical Permitting Improvement Act (Various Acts Amended and Permit Dispute Resolution Act Enacted)PDF 
39Hon. Mr. Fielding
Minister of Finance
The Supplementary Appropriation Act, 2020 (COVID-19 Response)PDFSM 2020, c. 17
40Hon. Mr. Wharton
Minister of Crown Services
The Manitoba Liquor and Lotteries Corporation Amendment and Liquor, Gaming and Cannabis Control Amendment ActPDF 
41Hon. Mr. Eichler
Minister of Economic Development and Training
The Fair Registration Practices in Regulated Professions Amendment ActPDF 
42Hon. Mr. Cullen
Minister of Justice
The Remote Witnessing and Commissioning Act (Various Acts Amended)PDF 
43Hon. Mr. Helwer
Minister responsible for the Civil Service
The Civil Service Superannuation Amendment Act *PDFSM 2020, c. 16
44Hon. Mr. PallisterThe Employment Standards Code Amendment ActPDFSM 2020, c. 18